I'm a libertarian lawyer and college professor. I blog on religion, history, constitutional law, government policy, philosophy, sexuality, and the American Founding. Everything is fair game though. Over the years, I've been involved in numerous group blogs that come and go. This blog archives almost everything I write.
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Thursday, October 31, 2013

If the sphere of religion was NOT viewed by the Framers to be within the legal jurisdiction of the Constitution’s Federal Government and if the Framers clearly understood religion to be the proper institution for inculcating virtues, then it follows that the Framers probably would not identify Jaffa’s identified virtues to be part of an explicit purpose of the Constitution’s positive law.

This conclusion is even further corroborated by the lack of evidence from the Philadelphia Convention that advancing virtue was implied by the “Blessings of Liberty” in the Preamble (or that it was otherwise a purpose in the Constitution). Again, the delegated-powers structure of the Constitution helps explain why this was the case. As mentioned previously, advocates of the Constitution (like Hamilton in Federalist 84) understood (at least in their public statements) the limited nature of the Federal Government’s powers. This entailed recognition that the States would retain the police powers involved in regulating morals. Since, then, advancing virtue was not seen as a Federal-level concern, the Framers naturally did not focus on this in their deliberations about the character and content of the Federal Government that they were creating in the Convention. Thus, even if the Framers did see some role for government in advancing virtue (e.g., even if they did not believe that religion alone was sufficient for inculcating the virtues), they would have viewed this as a function that properly belongs to the States, not the Federal Government.